Pro-whistleblower reform in the post-Garcetti era.

Author:Kleinbrodt, Julian W.

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick-Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern--such as whistleblowers--so long as the government's administrative concerns did not outweigh the employees' free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Geballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti's problematic rule has forced courts to adopt odd exceptions; it has created perverse incentives and sits uncomfortably within established First Amendment doctrine. This Note encourages a move away from Garcetti by advocating for a tripartite balancing framework, whereby speech is sorted according to its importance rather than the speaker's role. In the case of whistleblowers, this system would help ensure that the government can only restrict speech by government employees exposing public wrongdoing under extraordinary circumstances. This framework is more compatible with the rest of First Amendment doctrine and ensures the protection of speech that is most valuable to society.

TABLE OF CONTENTS INTRODUCTION I. GARCETTI AND FIRST AMENDMENT FUNDAMENTALS A. The Ongoing Debate over Public Employee Speech Law B. Garcetti's Shortcomings 1. An Inescapable Predicament for Whistleblowers 2. Unmanageable Exceptions C. Garcetti Also Creates Perverse Incentives D. A Doctrinal Outlier in First Amendment Jurisprudence II. A BETTER FRAMEWORK TO PROTECT PUBLIC EMPLOYEE SPEECH A. A Tiered Framework 1. Three Levels of Speech 2. Weighing the Speech's Content B. The Framework Applied: Resolving Garcetti's Practical Difficulties CONCLUSION INTRODUCTION

In the modern administrative state, millions of citizens call the government "boss." (1) As such, the government assumes a dual role--employer and sovereign. (2) The practicalities of government employment vest the government-employer with far broader powers than those usually possessed by the government-sovereign. (3) Defining the scope of these extended powers is a difficult, ongoing task, particularly within the realm of the First Amendment. (4)

The Framers placed great weight on protecting freedom of speech. James Madison considered the First Amendment "the most valuable amendment [o]n the whole list." (5) This elevated praise recognizes its centrality in protecting the viability and vitality of democratic self-governance. (6) Accordingly, the First Amendment protects a symbiosis: as part of the polity, citizens seek to contribute important ideas to the public discourse, and, as a society, the community has a strong interest in receiving these ideas. (7) Yet the First Amendment's concerns sometimes conflict with the government's interest in operating an efficient workplace. (8) The government must avoid workplace disruption, promote employee morale, and discipline those who undermine the integrity of the workplace and agency. (9) The history of public employee speech law, then, is one of an uneasy and constantly shifting relationship between protecting the employee's speech and the government-employer's administrative concerns.

There is no single definition of a whistleblower, and it takes on different contours in different contexts. (10) However, it appears that the term enjoys an expansive definition in public employee speech law, where it is "defined in the classic sense of exposing an official's fault to a third party or to the public." (11) That is, a whistleblower is a public employee who, after learning of governmental misfeasance or nonfeasance, discloses this knowledge internally--through formal or informal channels--or publicly. This Note adopts this denotation.

Whistleblower speech is critically important because it helps ensure a well-functioning democracy. (12) Government officials are responsible to, and representative of, the public. When they misappropriate resources or engage in misconduct, they undercut the public interest. But such misdoings must be known for them to be punished and corrected. Since "[g]overnment employees are often in the best position to know what ails the agencies for which they work," (13) society disproportionately relies on them to ensure quality in government. (14) Nonetheless, the specter of termination threatens to suppress this type of speech and deprive the public of information that is critical to a well-organized democracy. (15) It also threatens to undermine public confidence in the government's integrity. (16)

Originally, government employees had no special First Amendment protections. (17) But beginning in 1968, the Supreme Court charted a new direction for public employee speech law. In two landmark decisions, the Court enunciated a new balancing regime--the Connick-Pickering test--which balances the interests of the public employee, as a citizen commenting on matters of public concern, against the interests of the State, as an employer, in promoting efficiency in public service. (18)

The Connick-Pickering formulation recognizes that government employees are valuable assets to public discourse (19) and that the threat of termination poses a significant risk of chilling speech. (20) Since the First Amendment is a testament to a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open," (21) the Court concluded that those interests should only be compromised when outweighed by countervailing governmental concerns. (22)

In 2006, however, the Court significantly changed the Connick-Pickering framework in Garcetti v. Ceballos. (23) There, the Court enunciated a new threshold requirement: an employee's speech must be made in his capacity as a citizen, rather than as an employee speaking pursuant to his official duties, in order to proceed to the Connick-Pickering framework. (24) Therefore, courts are directed to initially scrutinize whether the employee was speaking pursuant to official duties. If so, the employee spoke in an official capacity--not as a citizen--and is categorically denied First Amendment protection for his statements.

This doctrinal shift was ill-advised. Over half a century ago, Justice Frankfurter's concurring opinion in Dennis v. United States persuasively argued that balancing inquiries are the only sufficient way to evaluate First Amendment claims because absolute rules would be insufficiently flexible to serve the Amendment's policy rationale. (25) In most areas of First Amendment jurisprudence, Justice Frankfurter's approach has generally carried the day, (26) but his words of warning, unfortunately, have proved prescient in Garcetti's wake.

The theoretical concerns have manifested. Garcetti has produced general confusion in the lower courts. (27) It has the potential to generate anomalous results. (28) And, most saliently, its inflexibility has forced courts to plug Garcetti's doctrinal holes with exceptions. (29) The recent circuit split between the Second and D.C. Circuits highlights numerous problems regarding Garcetti's applicability.

This Note argues that Garcetti went too far in creating an inflexible threshold requirement for First Amendment protection of public employee speech. Instead, a tiered balancing test is a more appropriate approach for addressing the issue of public employee speech while remaining faithful to traditional First Amendment concerns. Part I criticizes Garcetti's categorical rule because it fails to protect important whistleblowing, creates perverse incentives, and is doctrinally inconsistent. Part II offers a new analytical framework for analyzing public employee speech law that addresses the concerns of Garcetti without sacrificing the ultimate backstop protecting the First Amendment rights of public employees. Specifically, Part II proposes a three-tiered balancing scheme, which gives speech varying levels of protection based on its importance to the public.


    Garcetti fundamentally changed the established public speech law analysis by inserting a threshold inquiry into what had primarily been a fluid balancing framework. Commentators have thoroughly criticized the decision. (30) Nonetheless, its problematic implications are only starting to come to fruition in lower courts.

    Section I.A discusses the relevant history and legal standards deployed in cases involving public employee speech. Section I.B then criticizes the Supreme Court's recent decision in Garcetti. This Section uses the Second and D.C. Circuits' conflicting decisions in Jackler v. Byrne (31) and Bowie v. Maddox (32) as vehicles for exposing Garcetti's troubling implications. Section I.C discusses perverse incentives stemming from Garcetti. Finally, Section I.D argues that Garcetti took a misguided doctrinal step that makes public employee speech an anomaly within First Amendment jurisprudence. In sum, the decision's flaws call for a post-Garcetti reconceptualization of the public speech framework.

    1. The Ongoing Debate over Public Employee Speech Law

      Public employee speech law has fully passed through three phases. (33) In the first phase, which lasted until the 1950s, the Supreme Court gave no protection to government employees on the theory that public employment is a privilege, not a right. (34) In the second phase, the Court tempered its earlier approach and recognized that public employees could not have their speech rights curtailed for "patently arbitrary or discriminatory" purposes. (35)

      It was not until the third phase that the Court began to seriously protect public employees' free speech rights. (36) The Pickering v. Board of Education Court found that Marvin Pickering, a schoolteacher who...

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